Smith #267009 v. Heyns et al
ORDER ADOPTING REPORT AND RECOMMENDATION 156 ; Dismissing as moot 163 , 171 , 172 , 173 , 174 , 175 , 176 , 177 , 179 , 180 , 181 , 183 ; signed by District Judge Paul L. Maloney (Judge Paul L. Maloney, cmc)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
DERRICK LEE SMITH #267009,
HONORABLE PAUL L. MALONEY
OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION
Plaintiff Derrick Smith, a prisoner under the control of the Michigan Department of
Corrections, filed a pro se complaint pursuant to 42 U.S.C. § 1983. The complaint alleges that
William Alford, a corrections officer, violated Smith’s rights under the Eighth Amendment’s
prohibition of cruel and unusual punishment when he closed a door on Smith’s wrist, arm, and
hand in retaliation for Smith’s filing of legal actions.
STATEMENT OF FACTS
The following facts are beyond genuine issue, as reported by the magistrate judge.
Plaintiff is an inmate in the custody of the Michigan Department of Corrections (MDOC). On
September 2, 2012, Derrick Lee Smith was an inmate at the Michigan Reformatory (RMI).
Corrections Officer William Alford was employed by the MDOC at RMI. (ECF No. 119-3 at
On September 2, 2012, Alford informed Smith that he was being moved to another cell
and that he needed to return to his cell and pack up his property. Smith was unhappy with the
decision and shouted, “This is bullshit!,” several times. Alford gave Smith a direct order to return
to his cell and pack up. During the escort back to Smith’s cell, Smith took a few steps through
the I-5 bulkhead door, turned, and rushed towards Officer Alford. Alford was already closing the
door when Smith forcefully pushed the door into Alford’s wrist and hand. When Officer Alford
pushed back against the door, he was able to close it. Alford never observed Smith’s hand in the
door, nor would he have been able to close it if Smith’s hand had been in the way. After the door
was closed, Smith began beating the door and shouting. On September 2, 2012, Officer Alford
issued a misconduct citation against plaintiff for the assault and battery plaintiff had committed
against him. Smith’s response to the misconduct charge was that Alford accidentally closed the
door on his hand and that Officer Alfred had mistakenly believed that Smith’s push on the door
had been an effort by Smith to keep the officer from closing it. On September 14, 2012, Smith
was found guilty of the misconduct charge and was sentenced to 30 days of detention. (ECF No.
119-3 at PageID #741–44; ECF No. 119-4 at PageID #746.) Smith did not file any medical
evidence in support of his motion. He did file a copy of a health care request he made two days
after he was cited for misconduct in which he complained that his hand hurt and it was swollen.1
(ECF No. 137-1 at PageID #810.)
On June 26, 2013, Smith filed this lawsuit.
Defendant filed a motion for summary judgment alleging the affirmative defense that
Smith failed to exhaust administrative remedies. (ECF No. 33.) Smith filed a response. (ECF No.
38.) Plaintiff later filed a motion for a preliminary injunction concerning a 30-day phone
restriction imposed on him, which he alleges was further retaliation. (ECF No. 76.)
The magistrate judge issued a Report and Recommendation (R&R) concerning the
motion for summary judgment on January 5, 2015, which recommended that the motion be
As found by the magistrate judge, Smith submitted no proper affidavits or other evidence in
favor of his claim.
This case has been pending for some time. In part, this is due to Plaintiff’s robust motion
practice—dozens of motions have been filed.
granted due to Plaintiff’s failure to exhaust administrative remedies. (ECF No. 80.) The
magistrate found that a grievance against Alford filed more than two months after the incident
was untimely and thus did not exhaust the administrative remedies available to Plaintiff. Also on
January 5, 2015, the magistrate judge issued a Report and Recommendation (R&R) concerning
the motion for a preliminary injunction, which recommended denying the motion because it is
unrelated to any issue pending in the current lawsuit. (ECF No. 81.)
Smith filed objections to both R&Rs, asserting that he did timely file a grievance against
Alford (ECF No. 82) and that Alford contacted staff at the facility where Smith is now held and
instructed them to issue the misconduct report that led to his phone restrictions (ECF No. 81) in
retaliation for the lawsuit against him. Smith then filed several additional motions, including: (1)
a motion for summary judgment on the claims against Defendant Alford (ECF No. 84); and a
motion for leave to file an affidavit in support of his objections to the R&R (ECF No. 88).
The Court adopted in part and modified in part the magistrate judge’s R&R on March 31,
2015. (ECF No. 94.) As a result of that order, Smith’s motion for leave to file the affidavit was
granted, Smith’s motion for a preliminary injunction was denied, and Defendant’s motion for
summary judgment was granted with respect to one grievance and denied with respect to
another. (ECF No. 94.)
The magistrate judge issued an order denying most of the twenty-eight separate nondispositive motions filed by Smith, dismissing others as moot, and granting two. (ECF No. 155.)
Smith had also filed a motion for summary judgment and another motion for a preliminary
injunction (ECF Nos. 84, 152); on August 17, 2015, the magistrate judge issued another Report
and Recommendation recommending dismissal of both of those motions, and put Smith on
notice of the Court’s belief that judgment should be entered in favor of Defendant under Federal
Rule of Civil Procedure 56(f).3
Smith filed two notices of appeal to the Court as to the order regarding the nondispositive motions and an objection to the R&R on August 24, 2015. (ECF Nos. 157, 158, 159.)
Smith also filed a notice of appeal regarding the non-dispositive motions to the Sixth Circuit, but
the Sixth Circuit dismissed the appeal for lack of jurisdiction (ECF No. 161, 182.) Smith filed
another motion seeking the Court’s review on October 1, 2015. (ECF No. 183.)
This matter is before the Court on two related issues: first, the magistrate judge’s Report
and Recommendation and the subsequent objection (without particularity) filed by Smith; and
second, the magistrate judge’s non-dispositive denial of Smith’s motion for leave to submit
statements—of which Smith seeks to cure for purposes of the objection.
After being served with a report and recommendation (R&R) issued by a magistrate
judge, a party has fourteen days to file written objections to the proposed findings and
recommendations. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). A district court judge reviews de
novo the portions of the R&R to which objections have been filed. 28 U.S.C. § 636(b)(1); Fed.
R. Civ. P. 72(b). Only those objections that are specific are entitled to a de novo review under the
statute. Mira v. Marshall, 806 F.2d 636, 637 (6th Cir. 1986) (per curiam) (holding the district
court need not provide de novo review where the objections are frivolous, conclusive or too
general because the burden is on the parties to “pinpoint those portions of the magistrate’s report
that the district court must specifically consider”). Failure to file an objection results in a waiver
of the issue and the issue cannot be appealed. United States v. Sullivan, 431 F.3d 976, 984 (6th
While Defendant Alford requested judgment be granted in his favor in his response to Smith’s motion for summary
judgment, Alford did not file a cross motion for summary judgment.
Cir. 2005); see also Thomas v. Arn, 474 U.S. 140, 155 (upholding the Sixth Circuit’s practice).
The district court judge may accept, reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate judge. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b).
The Report and Recommendation noted that “Plaintiff filed a brief with his motion for
summary judgment (docket # 85), but he failed to file any evidence in support of his motion.”
This is chiefly because the magistrate judge had also issued an order denying Plaintiff’s motions
for leave to submit statements (ECF No. 115, 136). (ECF No. 155.)
In fact, Plaintiff’s proposed statements were insufficient as evidence for three reasons: (1)
the statements were not sworn statements because the statements were not submitted under
penalty of perjury; (2) the statements were not affidavits because the statements were made on
“information and belief”; and (3) the statements were not affidavits because the statements
lacked certification by a notary public that the signer made the statement in the presence of the
notary public and taken an oath or affidavit vouching for the statement’s truthfulness. See
Lauderdale v. Wells Fargo Home Mortg., 552 F. App’x 566, 571 (“[U]nsworn declarations
cannot be considered as evidence for summary judgment unless made under penalty of perjury,
certified as true and correct, dated, and signed.”); Ondo v. City of Cleveland, No. 14-3527, __
F.3d __, 2015 WL 4604860, at *5 (6th Cir. Aug. 3, 2015) (“[S]tatements made on belief or ‘on
information and belief’ cannot be utilized on a summary judgment motion.”) (quoting 10B
CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 2738
(3d ed. 1998)); Doxey v. McConkey, No. 1:13-cv-1175, 2015 WL 1003029, at *9 (W.D. Mich.
Mar. 5, 2015) (“[S]tatements in an affidavit made upon information and belief have no probative
value and may not be considered in a motion for summary judgment.”); Fed. R. Civ. P. 56(c)(4)
(“An affidavit or declaration used to support or oppose a motion must be made on personal
knowledge, set out facts that would be admissible in evidence, and show that the affiant or
declarant is competent to testify on the matters stated.”); see also Dunbar v. Prelesnik, No. 1:13cv-1100, 2014 WL 4542467 (a document with a notary stamp, but lacking the jurat providing the
“certification by notary public that a signer . . . has made in the presence of the notary public a
voluntary signature and taken an oath or affirmation vouching for the truthfulness of the signed
record” is not an affidavit under Michigan law).4
The R&R also correctly noted that “‘[a]rguments in parties’ briefs are not evidence.’” Id.
(citing Duha v. Agrium, Inc., 448 F.3d 867, 879 (6th Cir. 2006).
Plaintiff Smith filed an objection to the Report and Recommendation on August 24,
2015. The motion stated the following:
[T]he Plaintiff submits the BRIEF IN SUPPORT OF PLAINITFFS
OBJECTIONS TO THE REPORT & RECOMMENDATION, as that plaintiff has been
provided with the Report and Recommendation on August 20, 2015, Plaintiff will require
more law library time to conduct the research necessary to properly file the complete
OBJECTION as that Plaintiff has just been handed a SERIES OF MULTIPLE DENIALS
BY JUDGE GREEN and because of such denials, the Plaintiff will file this OBJECTION
TO THE REPORT AND RECOMMENDATION with the BRIEF IN SUPPORT TO
The Court has some reservations whether the third deficiency by itself is fatal to Smith under federal law. On the
one hand, the Notary Public is bound to follow the law of the State of Michigan. On the other hand, 28 U.S.C. §
Wherever, under any law of the United States or under any rule, regulation, order, or requirement made
pursuant to law, any matter is required or permitted to be supported, evidenced, established, or proved by
the sworn declaration, verification, certificate, statement, oath or affidavit, in writing of the person making
the same (other than a deposition, or an oath of office, or an oath required to be taken before a specified
official other than a notary public), such matter may, with like force and effect, be supported, evidenced,
established, or proved by the unsworn declaration, certificate, verification, or statement, in writing of such
person which is subscribed to him, as true under penalty of perjury, and dated, in substantially the
(2) If executed within the United States, its territories, possessions, or commonwealths: “I declare (or
certify, verify, or state) under penalty of perjury that the foregoing is true and correct. Executed on (date).”
Regardless of which law applies, however, Smith provided insufficient affidavits.
FOLLOW shortly hereafter and hopefully, within the time remaining from the time limit
that Plaintiff has been given.
Plaintiff States that THERE IS A STRONG OBJECTION TO THE REPORT
AND RECOMMENDATION and Plaintiff will file the Brief in Support as soon as
(ECF No. 159 (emphasis added).) Since that time, Smith has requested the docket sheet twice
and filed at least twelve additional motions. However, the Court finds that while Smith has
certainly sought to cure the magistrate judge’s non-dispositive order regarding the affidavits
(ECF No. 155), Smith neither filed brief in support of his objection to the Report and
Recommendation nor “pinpoint[ed] those portions of the magistrate judge’s report that the
district court must specifically consider.” Thus, the Court considers any objections to the R& R
However, on September 4, 2015, Smith did file a separate motion titled “MOTION FOR
LEAVE TO ACCEPT THE PLAINTIFFS PREVIOUSLY FILED STATEMENTS UNDER
DOCKET #115 & 136 AS BEING STATEMENTS MADE UNDER PENALTY OF PERJURY
FOR PURPOSES OF OBJECTION TO THE REPORT AND RECOMMENDATION AND TO
ENSURE THE COURT ACCEPTS PLAINTIFFS STATEMENTS UNDER THE PENALTY
OF PERJURY.” (ECF No. 164.)
Thus, Smith apparently argues that the Court should first, grant his motion to cure the
two previously submitted affidavits as proper—despite the magistrate judge denying Smith leave
to file them in the first instance, and second, consider those affidavits as evidence for de novo
review for purposes of the objection.
However, the Brief in Support of that separate “motion” essentially seeks to cure the
defects identified in the magistrate judge’s non-dispositive order denying both motions for leave
to file the affidavits in the first instance. (ECF No. 155 (denying ECF Nos. 115, 136).) An appeal
on a non-dispositive motion is only reversed if the decision was “clearly erroneous or contrary to
law.” See, e.g., U.S. v. Raddatz, 447 U.S. 667, 673 (1980); U.S. v. Curtis, 237 F.3d 598, 603 (6th
Cir. 2001). Here, the magistrate’s order holding that the statements were defective was obviously
not “contrary to law.” Simply put, the statements, as submitted, could not possibly constitute
evidence, as those statements did not suffice for evidentiary purposes. Thus, the next question is
whether the Court must grant Smith leave to cure the defects. The answer to that question is
The reasons for answering “no” are numerous: (1) Smith, regardless of how the Court
treats the “motion for leave to accept . . . the previously filed statements,” did not “pinpoint those
portions of the magistrate judge’s report that the district court must specifically consider,” did
not ever submit a brief in support of his objection, and thus, waived any objections to the R&R;
(2) Smith seeks to collaterally attack the magistrate judge’s non-dispositive order denying initial
leave to file the statements by urging the Court to accept those same statements (as “cured”) for
purposes of de novo review for the Report and Recommendation; and (3) Smith’s “motion for
leave to accept . . . the previously filed statements”—even if it could be construed as a brief
“pinpointing” objections to the R&R—was not timely filed within fourteen days of the R&R.5
See, e.g., Marshall, 806 F.2d at 637; see also Jarbou v. JP Morgan Chase Bank, 611 Fed. App’x
342, 343 (6th Cir. 2015) (“Plaintiffs did not file specific objections, but rather rehashed
The R&R issued on August 17, 2015; Smith’s objection, which contained no particularity, was filed on August 24,
2015; Smith’s “motion for leave to accept the plaintiffs previously filed statements under docket #115 & #136 as
being statements made under penalty of perjury for purposes of objection to the Report and Recommendation” was
filed on September 4, 2015, past the deadline.
A fourth reason that only relates to the denial of Smith’s motion for summary judgment (rather than the Rule 56(f)
issue): The proposed statements—even if the Court considered them “cured” as evidence at this late stage—were
filed well after the motion for summary disposition, and would not have to be considered by the Court under Rule
56(c)(3) (“[t]he court need consider only the cited materials”).
In sum7, even if the Court granted maximum deference to Smith, he, as a baseline matter,
has failed to “pinpoint those portions of the magistrate’s report [itself] that the district court
must specifically consider” Marshall, 806 F.2d at 637 (emphasis added). Smith failed to file a
brief in support of that objection, and the Court does not construe a separate motion as a brief in
support. Thus, Smith has waived any objection to the R&R. Even if Smith did “pinpoint” a
factual objection, however, the magistrate judge issued orders on the non-dispositive motions
that denied leave to file the affidavits in the first instance, and the magistrate’s decision was not
“contrary to law.” And the Court, in its discretion, finds ample reason to deny a renewed motion
to “cure” the defects in the affidavits.
Finally, even if the Court did accept Smith’s “motion for leave to accept . . . previously
filed statements,” the Court would choose not to consider those statements for purposes of
denying Smith’s motion for summary judgment—as it is entitled to do so under Rule 56(c)(3).8
Further, while Smith was given proper notice and an opportunity to respond pursuant to Rule
56(f), the Court still possesses no admitted evidence on behalf of Plaintiff before it to raise a
dispute of material fact, and judgment in favor of Defendant is proper.
For the reasons stated above, Plaintiff’s “motion to accept . . . previously filed
statements” (ECF No. 164) is DENIED; further, the Report and Recommendation that
Smith also erroneously seeks to appeal the magistrate judge’s denial of Defendant’s motion for a stay and
evidentiary hearing regarding the administrative exhaustion issue. (ECF No. 172.) However, the Court had
previously denied Defendant’s motion for summary judgment solely on administrative exhaustion, and the effect of
the magistrate judge’s order denying motions for a stay and evidentiary hearing regarding administrative exhaustion
were wholly in favor of Smith. In other words, the Court has already held that Smith survived the administrative
exhaustion issue. Smith’s attempts to keep his suit temporarily alive by appealing non-dispositive orders in his
favor, and on behalf of Defendant, are frivolous. Nonetheless, the Court need not further address the motion since it
will be rendered moot as a result of this opinion and order.
The magistrate judge also reported that, as a matter of law, Smith’s official capacity claim is barred by Eleventh
Amendment immunity, and the evidence in the record demonstrates that “Defendant’s use of force and plaintiff’s
injury (if any) were de minimis and insufficient to support an Eighth Amendment claim.” (ECF No. 156.)
recommends denying Smith’s motion for summary judgment (ECF No. 84) and dismissing as
moot Smith’s motion for a preliminary injunction (ECF No. 152) is ADOPTED.
Plaintiff’s “motion to accept . . . previously filed statements” (ECF No. 164) is DENIED.
The Report and Recommendation addressing Plaintiff’s motions for summary judgment (ECF
No. 84) and preliminary injunction (ECF No. 152) is ADOPTED as the opinion of this Court.
Pursuant to Rule 56(f) of the Federal Rules of Civil Procedure, SUMMARY JUDGMENT is
GRANTED IN FAVOR OF DEFENDANT.
A JUDGMENT in favor of Defendant will follow, and all other motions (ECF Nos. 163,
171, 172, 173, 174, 175, 176, 177, 179, 180, 181, 183) will be DISMISSED AS MOOT.
IT IS SO ORDERED.
Date: October 20, 2015
/s/ Paul L. Maloney___
Paul L. Maloney
United States District Judge
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